About this weblog

Here we'll explore the nexus of legal rulings, Capitol Hill
policy-making, technical standards development, and technological
innovation that creates -- and will recreate -- the networked world as we
know it. Among the topics we'll touch on: intellectual property
conflicts, technical architecture and innovation, the evolution of
copyright, private vs. public interests in Net policy-making, lobbying
and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

September 30, 2005

In Praise of First Sale

Posted by

William Patry, commenting on the news that some authors and book publishers are unhappy about sites like Amazon.com offering books for sale at different prices -- i.e., list price, sale price, used book price:

It is really no fun to write about copyright owners acting like Luddite pigs, and being in private practice it has a definite commercial downside; I would much rather praise Caesar. But, things are as they are, and I have always opted for honesty over craven brown-nosing and over self-imposed censorship. I hope my twins forgive me. ...

I buy the vast majority of my books through amazon.com and pay alot of attention to the choices they offer for the book I am interested in. Choice is bad, apparently. I should have to pay list price and I shouldn't be able to resell it (at least through amazon.com) without amazon.com sending a check to the publisher, who will of course pass 100% through to the author, at least that is what a literary agent is quoted in the article as advocating.

Sad, is the only polite word I can think of for authors and publishers' utter failure to embrace an extremely beneficial system. The first sale doctrine was judicially created by the Supreme Court pre-1909 Copyright Act in order to prevent publishers from misusing copyright to maintain list price. Some things truly never change.

I think there is another point of view here, and a quite valid one at that. If books are to be resold, fewer new books will be sold. Publisher profits, costs and author royalties will have to be made up somehow - assuming, for the sake of argument, that the internet is not yet ready to reinvent publishing (and given the still slow penetration of e-books and e-reading, that's probably still a fair assumption).

It may be that new books will cost more - they are now easier to resell, so there is some logic to that - or it may be that publishers will take have to take a share of used book sales. No doubt this will take time to shake out - who knows precisely how the sales of used books will impact the market for new books?

But I don't think this needs to be any more complicated than that. The first sale doctrine, or any other principle of copyright law for that matter, are really beside the point for the time being. For now, the issue is how we are to adequately incent publishers and authors if resellers and the Amazons of the world take a bigger piece of the pie.